McClure Realty & Inv. Co. v. Eubanks

• Decision Date: 10 August 1921
• Docket Number: 2350.
• Parties: MCCLURE REALTY & INVESTMENT CO. v. EUBANKS ET AL.
• Court: Georgia Supreme Court

108 S.E. 204

151 Ga. 763

MCCLURE REALTY & INVESTMENT CO. v. EUBANKS ET AL.

No. 2350.

Supreme Court of Georgia

August 10, 1921

Syllabus by the Court.

"The contract of an insane person or one non compos mentis, who has never been adjudicated to be insane or of unsound mind as prescribed by the Code, is not absolutely void but only voidable." "Such a contract may be ratified [or avoided] by him upon afterward becoming sane or during a lucid interval, or, after his death, may be avoided or ratified by his heirs or personal representative." Other persons, such as the petitioners in this case, cannot avoid it.

Error from Superior Court, Fulton County; Geo. L. Bell, Judge.

Action by Mary J. Eubanks and another against the McClure Realty & Investment Company. Judgment for plaintiffs, and defendant brings error. Reversed.

Weltner Cheatham & Koplin, of Atlanta, for plaintiff in error.

Little Powell, Smith & Goldstein, of Atlanta, for defendants in error.

FISH C.J. (after stating the facts as above).

The petition in this case does not disclose the exact character of the action brought by Mrs. Fuller against Mrs. Eubanks and Mrs. Zellars, nor the issues therein involved and decided further than that case included a controversy over the land covered by the lease contract here sought to be canceled that a guardian ad litem was therein appointed for Mrs. Fuller, "on account of her mental weakness and incapacity," that a settlement was made of the controversies in the case, and that a decree was rendered by which the life estate of Mrs. Fuller in the property, the subject-matter of the lease contract, was passed and conveyed to the petitioners in the present case, and that they were decreed to be the absolute owners in fee of the entire interest in the leased premises. The petition does not allege that Mrs. Fuller is not still in life, nor that she has not continued to be insane since the execution of the lease contract, nor that she has ever been adjudged to be insane, and a guardian appointed for her property. It will be presumed, therefore, that she is still alive and insane, and not under guardianship. The petition does allege that Mrs. Fuller was insane at the time she executed the lease contract to the McClure Realty & Investment Company, defendant in this case, and that when the decree was entered in her case against Mrs. Eubanks and Mrs. Zellars she was represented by a guardian ad litem, appointed by the court "on account of her mental weakness and incapacity."

It is well settled in this state that--

"The contract of an insane person or one non compos mentis, who has never been adjudicated to be insane or of unsound mind as prescribed by the Code, is not absolutely void, but only voidable." Bunn v. Postell, 107 Ga. 490, 33 S.E. 707, followed in Orr v. Equitable Mortgage Co., 107 Ga. 499, 33 S.E. 708, Woolley v. Gaines, 114 Ga. 122, 39 S.E. 892, 88 Am.St.Rep. 22, and Perry v. Reynolds, 137 Ga. 427, 73 S.E. 656.

This doctrine has been almost universally recognized by text-writers, and adjudicated cases on the subject.

"Such a contract may be ratified by [the insane person] upon afterward becoming sane or during a lucid interval, or, after his death, may be avoided or ratified by his heirs or personal representative." Bunn v. Postell, supra.

The right to disaffirm a voidable contract of an insane person is personal, and can be exercised only by himself, if restored to sanity; or if his infirmity continues till his death, then by his legal representative or his heirs; but neither the other party to the contract nor third persons can avoid it. In support of these legal propositions see the authorities cited in Bunn v. Postell, supra; and in 22 Cyc. 1174, notes 90, 92, 93, 94, 95, and page 1209, notes 24, 26, 27, 28; 16 Am. & Eng. Enc. Law, 629, note 2; 9 Eng. Enc. Law, 119, notes 2, 3, 4; 14 R.C.L. 592, notes 10, 12, 13; Clark on Contracts (3d Ed.) 231, notes 40, 41, 42, 43, 44; 1 Devlin on Realty (3d Ed.) § 73, note 8, and section 75, note 7; 3 Tiffany on Real Property (2d Ed.) 2342, note 65, and page 2344, note 71a; 1 Jones on Real Property, § 64, note 6; 1 Williston on Contracts, § 253, note 28; 1 Elliott on Contracts, § 382, notes 84, 85, 87; 4 Elliott on Contracts, 3221, notes 95, 3, 4, 5, 6. Also Vogel v. Zuercher (Tex. Civ. App.) 135 S.W. 737 (4); Porter v. Brooks (Tex. Civ. App.) 159 S.W. 192.

The petitioners in this case, who are seeking to disaffirm the lease contract of Mrs. Fuller on...